GPSolo Magazine - September 2005

ADA Guidelines Raise the Ethics Bar

By Judy Cohen

The rapid expansion of civil rights mediation, a relatively new field, is partly driven by complaints under the Americans with Disabilities Act (ADA). Thousands of such complaints have been mediated during the last ten years. Innovative practices in civil rights mediation pose powerful challenges to accepted notions about mediator ethics. The Model Standards of Conduct for Mediators was introduced in 1994, shortly after the ADA was enacted. Consequently, the framers did not have the opportunity to consider the emerging complexities of the ADA and other civil rights mediation or of generic mediation involving participants with disabilities. Interaction across race and gender lines is not new to most mediators, but integrating people with disabilities into the process has proven problematic for many. To address these concerns, the ADA Mediation Guidelines were issued in February 2000.

Access to the process. Although the ADA is a legal statute, the Guidelines' context is ethical and practical-highlighting a fundamental conflict on disability access between legal requirements and mediator ethics. Developing case law has narrowed the definition of disability.

However, consistent with the Model Standards' ethical guidance that mediators are obligated to "make mediation accessible to those who would like to use it," the Guidelines suggest that, in assessing whether to provide disability accommodations, "the broadest definition of disability should be applied, including chronic conditions, episodic symptoms, and temporary disabilities." This broad definition is essential to preserving the perception of the mediator's neutrality. The question of whether an individual even has a disability is often the first objection raised by a re-spondent in an ADA mediation. A mediator who makes a disability determination or bases a decision about whether to accommodate on such an assessment is not playing a neutral role-in fact, the mediator is generally not competent to determine whether a party has a disability as defined in the ADA. In any case, such an action would reflect bias.

In practice, a fundamental ADA mediator tool is the ability to work with an individual who has a disability to develop and provide accommodations to the process. To handle accommodations competently, a mediator should understand the range of disabilities and feel comfortable addressing disability issues.

Mediator bias. Equal access to the process requires an unbiased mediator. The Model Standards instruct that "A mediator should guard against partiality or prejudice based on the parties' personal characteristics, background, or performance at the mediation."

Mediators who do not have insight into the disability experience are prone to share society's assumption that people with disabilities are dependent, need help, and cannot make their own decision. Equal access for people with disabilities can be undermined by the negative attitudes of other mediation participants, including the mediator.

Mediators who cannot remain impartial are obligated to withdraw, according to the Model Standards. But whether a particular mediator withdraws will depend on his or her personal practice and moral code; some may be loath to address their biases or to recuse themselves. Blatant biases reflect a dehumanizing view of people with disabilities, but most parties can easily perceive subtle, or even subconscious, bias.

Competency. The Model Standards define mediator competency according to whether "the parties are satisfied with the mediator qualifications." When the Model Standards were promulgated, the concept of acceptability was based largely on labor arbitration practice. This approach is effective in the labor-management context, in which:

arbitrators have long-standing credibility and often ongoing relationships with the parties;

the work product-that is, the award-is available for review;

the parties and the neutral are knowledgeable about the substantive and procedural issues; and

the table is comparatively balanced.

This approach does not translate well to ADA mediation, where, as in family, bioethics, or environmental mediation, the table is typically unbalanced, the mediator is unknown to at least one of the parties and has qualifications that are hard to verify, and resolution depends on specific skills and knowledge the parties do not have. The Guidelines created for the first time a quantifier for ADA mediator competency, summarized by the view that "Mediators should have knowledge of disabilities, disability access, and disability law."

Training. The Guidelines recommend at least 14 hours of specialized training for already skilled mediators, including at least three hours each of substantive law and disability awareness.

Awareness topics include disability etiquette and individual biases about disability. A requisite training component is "at least one opportunity for participants to interact with a person who has a disability." Many new ADA mediators are transformed by hearing perspectives that arise from life experiences different from their own.

The Guidelines also suggest that each trainee should have the opportunity to role-play and receive feedback as mediator at least once. This is one of the most effective ways to identify mediators who are not comfortable with disabilities.

Confidentiality. Confidentiality is addressed in the Model Standards in terms of "reasonable expectations of the parties." In ADA mediation, confidentiality is particularly significant because of the sensitive nature of disability-related information. New ADA mediators sometimes question the fairness of arranging access to the process directly and confidentially with the person with a disability. But mediators should realize that concerns about job security or about the reactions of coworkers may make a person reluctant to disclose a disability. Additionally, as the Guidelines explain, even after disclosing a disability, "there still may be information that the person does not wish to reveal, such as the diagnosis or the severity of his/her limitations or health problems." The mediator may reality-test with the person about benefits and drawbacks of disclosure. Ultimately, though, whether to disclose is a personal decision.

Capacity to mediate. The core value of the ADA Mediation Guidelines is self-determination. This conflicts with the Model Standards' only clause to explicitly address disability concerns. The Model Standards reflect a pre-ADA ethic of protecting people with disabilities rather than the current view that is oriented toward recognizing their independence and abilities. The Model Standards require a mediator to withdraw from a mediation or postpone a session "if the mediation is being used to further illegal conduct, or if a party is unable to participate due to drug, alcohol, or other physical or mental incapacity."

This statement has received particular attention from ADA mediators. The ABA Commission on Mental and Physical Disability Law began a project to revisit this language and its unintended disempowerment of people with disabilities. And the disability and ADR committees of the Association of the Bar of the City of New York initiated a collaboration to address it. The group composed new language, merging the framers' legitimate intent to protect people with impaired capacity with a post-ADA approach that recognizes the mediator's role in cases in which any mediation party, not just a person with a disability, encounters obstacles to participating fully. The proposed language acknowledges that there are many potential reasons why partiesmay not have the capacity to mediate, such as distraction by extreme anger or language barriers. Capacity to mediate is no longer characterized as a disability concern but is given a universal context.

Coercion. According to the Model Standards, self-determination relies on "the ability of the parties to reach a voluntary, uncoerced agreement." Building on this, the Guidelines stress that the parties must be "aware of their legal rights and the responsibilities under the ADA prior to the mediation so that they can par-ticipate meaningfully and make informed decisions."

Judy Cohen is organizational development program manager for the Federal Aviation Administration Eastern Region Flight Standards Division. She can be reached at judy.cohen@faa.gov.

For More Information About the Section of Dispute Resolution

- This article is an abridged and edited version of one that originally appeared on page 3 of Dispute Resolution, Winter 2004 (10:2).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.